After 11 series and over 1,000 hours on our TV screens, Big Brother is coming to an end. However, over the past 10 years, has the reality show become a reality for employees across the UK?
Certainly for the 184 contestants who have taken part in the Channel 4 show, life in front of a lens became normal and every movement was tracked and recorded with the full consent of those taking part. However, with the introduction of Radio Frequency Identification (RFID) the potential for an Orwellian fantasy becoming an actual reality is looking increasingly likely to affect our everyday working lives.
RFID is a form of tracking technology that uses microchips not much bigger than a grain of rice. Whereas in the past these chips could only be read from a short distance, advances in technology now mean that some tags can be read from a much further distance, including by satellite. Although this might seem like a fitting plot for the next summer blockbuster, there are obviously serious concerns about implementation of such devices within the European Commission. In 2009 guidance was provided on designing and operating RFID applications in a 'lawful, ethical and socially and politically acceptable way'. Care must be taken where there is any possible infringement to the fundamental human right to privacy and the protection of personal data.
Such technology is already being used and part of our normal everyday life. When we send a delivery by courier, order something online or even hire a car, tracking technology keeps us informed and even prevents luggage on airlines from being lost. However, such technology is also being used in work place security passes, payment cards for canteens and even bars and, of course, in new passports. In Australia, the use of RFID chips has extended to incorporation into staff uniform, although in this particular example, the scheme was justified by the company, Star City Casino, to keep track of 80,000 employee uniforms. In Japan, on the other hand, the technology is being used to monitor how much each worker contributes to production. Closer to home, the union GMB has claimed that the use of electronic tagging is on the rise and has accused companies of 'dehumanising their work force'.
Employee surveillance is logically the next step as employers endeavour to assert even more control over their workforce. As the technology advances, so does the number of potential uses for that technology. We have already seen the use of surveillance technology being used in Employment Tribunal claims. For example, companies whose vehicles which are tagged and locations recorded using GPS technology have been able to prove what time employees arrive and leave their place of work and, when cross referenced with work time sheets, discrepancies can often be found. Such evidence is difficult to discount as the margin for human error is minimal.
There are, of course, some drawbacks to the use of RFID tagging should any employer be considering rolling it out across its workforce. Data protection issues will undoubtedly arise. The Data Protection Act 1998 (DPA) regulates the processing of personal data, which includes the storage of that data. If an employer required an employee to wear an RFID chip to locate them, and the information about their movements was stored on the tag and linked to a database containing personal data which could specifically identify that individual, the DPA would apply and any processing of that data would need to be managed within and in accordance with the principles set out within it Specifically, it must be obtained only for specified and lawful purposes and not processed in any manner incompatible with those purposes; adequate, relevant and not excessive in relation to the purposes for which it is processed.
It is recommended by the Information Commissioner's Employment Practices Code that an impact assessment should be carried out to decide whether monitoring is a proportionate response to any problem the company seeks to address. If it is proportionate, it must also be considered how such monitoring should be carried out. Although there have been no reported cases of electronic RFID tag monitoring in the Employment Tribunals as yet, it is likely that any infringement of an employee's rights which is deemed to be excessive and unnecessary is also likely to be deemed unlawful. Only where the company can satisfy a Tribunal or Court that the use of such technology has been for a specific, explicit and legitimate purpose will the use of this data be permitted.
So, looking to the future, there is no doubt that electronic tracking will be used as companies seek to monitor their employees not only in their local environment but also, potentially, across the world. Although there are already some provisions in place for the control and use of RFID technology, it is essential that the law remains sufficiently flexible to accommodate technological advances, but also to give due weight to the right of an employee to a private life. I do not foresee employers themselves being tagged - certainly not in the near future. That said, in the longer term where home or remote working may become the norm it is easy to see where such technology might come into use.
If you are considering using any data collected from the use of surveillance technology, whether it be GPS tracking on company vehicles or even CCTV footage, be prepared to answer questions about legitimate use and specific purpose. Although it might not be expected that Judges will be up to date with changing times, be assured that their approach to the law is also ever changing, and what might have been considered acceptable five years ago might not be so today.
Sheffield based company Crawfords, an automatic and industrial door and docking solutions provider, uses a range of tracking to benefit a number of areas around the business, as Heather Gallagher, Service Operations Manager explains:
"We have over 50 remote workers so tracking plays an important role for a number of reasons. It's very important from a health and safety perspective for staff working remotely, alone or out of hours. It's also used on a day to day basis to locate the nearest engineers to a customer's site and, importantly, to help keep our customers informed on our expected arrival time.
"Our Masternaut tracking system also has environmental and cost benefits as we can monitor fuel usage and the efficiencies of our engineers.
"Obviously there are occasions where the tracker has been used to locate errant engineers, especially in vehicle related complaints from the public. However it has also been used to clear a couple of engineers when an informant has misread a registration number or quoted a falsely high speed, we have been able to go to the tracker and show that the engineer being accused was in another county or not doing the speed mentioned - it's amazing how 70mph can become 90mph when someone is complaining!"
For more information on our employment law services, please contact Mark Serby on 0114 266 6660 or email [email protected].
